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State Bill Would Bar Condoms as Prostitution Evidence

Yvette Gonzales, a former prostitute who now works for a nonprofit group, counsels prostitutes on healthy practices.Credit
Ozier Muhammad/The New York Times

When she worked the streets, Yvette Gonzales said, she frequently saw other prostitutes working without condoms. But they were not having unprotected sex at the request of their customers.

Often, Ms. Gonzales said, the police would confiscate condoms when making a prostitution arrest so they could be used as evidence. And as soon as the prostitutes were released from jail, she said, they would go right back to work without protection; or refrain from carrying condoms at all, for fear of being arrested.

“It breaks my heart,” said Ms. Gonzales, who now works for a nonprofit group, the Positive Health Project, that counsels prostitutes, tests them for infection and provides them with free condoms. “The police need to understand: Don’t take their condoms. You’re taking someone’s health from them.”

Assemblywoman Barbara M. Clark, Democrat of Queens, and State Senator Velmanette Montgomery, Democrat of Brooklyn, have sponsored a bill to keep the possession of condoms from being used in criminal court as evidence of prostitution. The bill was first introduced in 1999 and has been re-introduced every year since, but has consistently died in committee. This year, its backers express optimism.

“Now there’s more support,” said Sienna Baskin, the co-director of the Sex Workers Project of the Urban Justice Center. She cites the New York Civil Liberties Union, Planned Parenthood and the Public Health Association of New York City as some of the organizations that have been compiling research to convince lawmakers. In July, both Human Rights Watch, which is working on a national study of the issue, and George Soros’s Open Society Foundation, which is compiling an international study, will release their reports.

The New York Police Department did not respond to questions about the proposal, but prosecutors said they wanted the option of including condom evidence at trial. “I oppose any law that would restrict our use of evidence,” said Charles J. Hynes, the Brooklyn district attorney. “Prosecutors in my office assess evidence on a case-by-case basis, determining what is appropriate in each situation.”

Excluding certain types of evidence from criminal court is rare, but not unprecedented. One example is the rape shield law, which limits evidence or questions in rape trials about a complainant’s previous sexual conduct.

Ms. Baskin said her organization had become involved in the issue because of the confusion on the issue that sex workers expressed during free legal workshops the group provided. “They’d ask us, ‘How many condoms can I legally carry?’ ” Ms. Baskin said, adding, “That’s a disturbing question, because it’s not a crime to carry condoms.”

In a recent survey of 35 prostitutes conducted by the Sex Workers Project, 16 said they had not carried condoms at times because they were afraid it might lead to trouble with the police. Fifteen said their condoms had been destroyed or taken away by the police. Three of those 15 said they had engaged in sex afterwards without a condom.

One of them was a 22-year-old who said that she had no alternative but to risk her health. She was working late at night, in a park where she could not easily obtain a condom. She told Chris Bilal, a research volunteer: “I’m damned if I do and damned if I don’t. I don’t want to get any disease. But I do need to make my money.”

Most criminal cases end with plea deals. But in one that went to trial last year in Manhattan, the defense lawyer, Kate Mogulescu of the Legal Aid Society, tried to have the court exclude from the trial a condom that had been found in her client’s purse. The police said her client had confessed, but that alone was not enough to win a conviction. So prosecutors were using the condom, along with other evidence to corroborate the confession.

The judge, Richard M. Weinberg of Manhattan Criminal Court, said he would take the evidence for what it was worth, but his opinion became apparent when he added, “I’ll tell you again, in the age of AIDS and H.I.V., if people are sexually active at a certain age and they are not walking around with condoms, they are fools.” He acquitted the woman.

A version of this article appears in print on March 1, 2012, on page A27 of the New York edition with the headline: State Bill Would Bar Condoms as Prostitution Evidence. Order Reprints|Today's Paper|Subscribe